Gen. Stewart—Mr. Bryan, Jr., will present the opening.
The Court—I will hear you, Col. Bryan?
Bryan's Son Pleads Against Expert Testimony
Mr. Bryan—If the court please.
The attorney-general has requested me on this discussion to divide the time on the expert testimony. It is, I think, apparent to all that we have now reached the heart of this case, upon your honor's ruling, as to whether this expert testimony will be admitted largely determines the question of whether this trial from now on, will be an orderly effort to try the case upon the issues, raised by the indictment and by the plea or whether it will degenerate into a joint debate upon the merits or demerits of someone's views upon evolution.
Mr. Neal—We are very anxious to hear every word. Can you speak a little louder?
Mr. Bryan—This expert evidence is being offered for the avowed purpose of showing that the theory of evolution as understood by the witness, offering the testimony does not contradict the Biblical account of creation, as understood by the witness. All of which, the state contends, is wholly immaterial, incompetent and inadmissible for many reasons since the beginning of time, at least since the beginning of time, since we have had courts and juries and experts to testify, this particular class of testimony has been regarded of all testimony the weakest and most capable of abuse and the most dangerous.
No Way to Get Expert for Perjury
If a man testifies as to a fact his testimony may be met, or contradicted by other facts. If he testifies falsely, he can be punished for perjury. But if a man gives a false opinion there is no way that you can contradict him. There is no way he can be punished. There has scarcely been a trial in recent years where the material issues have been testified to by experts, but that the public has again been convinced of the utter futility of that testimony.
The Court—Mr. Bryan, I am sure everyone is anxious to hear every word you say. Will you speak a little louder?
Mr. Bryan—I will try to speak a little louder, yes. I have heard a good many harsh things, said about experts. I believe it was my good friend, Mr. Darrow, who, in the Loeb trial characterized one of the experts there used, as a purveyor of perjury. He was probably justified in so characterizing him. But it is a fact, I have not been able in the examination of the books to find any statement as strong as that—but it is a fact, that the courts have unfavorably regarded this sort of evidence, and received it with extreme caution, and investigated it with every care. Our courts have held that the testimony of expert witnesses should be received with caution and investigated with every care.
This rule is stated in Jones on Evidence, and in every work of authority upon evdence. In Volume II, page 374, it is well-stated as follows:
(Reading beginning with the words, "It is the general disposition of the courts to restrict the admission of expert testimony within the strict bonds" to "is desired.")
And the same authority goes on to quote from remarks of Justice Early in the case of Ferguson vs. Hubbell, 97 N. Y., 507, which refers to the famous Tarduie case and early English cases upon this particular subject. Early said as follows:
"The rules admitting the opinions of experts should not be unnecessarily extended. Experience has shown that it is much safer to confine the testimony of witnesses to the facts in all cases where that is practicable, and to leave the jury to exercise their judgment and their experience upon the facts, proved. Where witnesses testify to facts they may be specially contradicted. If they testify falsely they are liable to punishment for perjury, but they may give false opinions without fear of punishment. It is generally safer to
